Writ of error to the Criminal Court of Cook County; the Hon.
RICHARD A. HAREWOOD, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment of guilty based upon an indictment charging the commission of the offense of armed robbery. The defendant was found guilty after a jury trial. The defendant was sentenced from two to eight years in the penitentiary.
The defendant raises two points, (1) the indictment is insufficient to meet the constitutional or statutory requirements for validity, and (2) that because of the prejudicial remarks of the Assistant State's Attorneys in their closing arguments the convictions should be reversed.
The defendant sued out a writ of error in the Supreme Court of Illinois and the case was transferred to this court. By its order of transfer the Supreme Court said the following:
"The defendant claims that the indictment was insufficient to comply with statutory and constitutional requirements. It does not appear that the alleged constitutional defect was raised in the trial court and the charge now made is insufficient to give us jurisdiction. It is also alleged that certain remarks of the prosecutor deprived the defendant of a fair trial. In our opinion this claim presents only a question of whether error was committed and not a substantial constitutional question. On the Court's own motion the cause is transferred to the Appellate Court for the First District."
The indictment charged the defendant with the commission of the offense of robbery in that he, by the use of force and while armed with a dangerous weapon, took $12 in United States Currency from the person and presence of Elgin Richard Dickerson. The indictment described the offense as having taken place in County of Cook and State of Illinois. These charges were filed under the old Criminal Code, Illinois Revised Statutes 1961, chap 38, § 716.
In People v. Burns, 403 Ill. 407, 408, 86 N.E.2d 197, the court said:
"The place of the commission of the offense of robbing a natural person need not be precisely laid or proved where the place of the commission of the offense is not an element thereof. The gist of armed robbery is the force or intimidation used in taking another's property against his will. (Citing cases.) Under the charge laid, all the People needed to do was to prove Burns robbed Hopkins within the bounds of Cook County. The indictment is sufficient when it is specific enough to notify Burns of the charge he had to meet and enable him to prepare his defense."
See also People v. Starr, 50 Ill. App.2d 399, 200 N.E.2d 118.
The record discloses that the defendant proceeded to trial being fully aware of the exact nature of the charges against him.
The defendant relies on the case of People v. Williams, 30 Ill.2d 125, 196 N.E.2d 483, which held that an indictment charging defendants with attempting to break and enter a factory building, without giving a street address or more specific location in the county, was insufficient. In the Williams case, supra, the place of commission of the offense was an element thereof. In an armed robbery case the location is not an element as set forth in the Burns case, supra. Furthermore, our Supreme Court in the case of People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97, has overruled People v. Williams, supra.
We now come to the second point raised by the defendant. Defendant argues that during the closing arguments the State's Attorneys persistently insinuated that the defendant was a professional subway thief. The evidence regarding this offense was the following:
Elgin Dickerson, the complaining witness, left work about 1:00 a.m. on August 18, 1962, at the Sherman House hotel. He took a northbound El at State and Lake Streets to Wilson Avenue. He later took a south bound El from Wilson Avenue to go home at about 1:45 a.m. He was seated in the rear of the second car in the last seat on the left hand side next to the window. Dickerson had fallen asleep and was awakened after the El left the Clark and Division station. Upon awakening he noticed that a man sitting next to him on his right had his right hand inside Dickerson's coat. Dickerson grabbed the man's hand and told him to get his hand out of his pocket. As the man's hand came out of Dickerson's pocket he had a $10 bill and two $1 bills. Dickerson stood up and told the man to give him his money. The man said it was not Dickerson's money, that it was his money. Dickerson reached for the money and a fellow sitting opposite across from Dickerson got up, reached over and pushed Dickerson back. Dickerson pushed the second man back and said "Give me my money." The first man drew a blue, short revolver and Dickerson sat down. The man was standing right beside Dickerson and Dickerson had turned to his right and was facing the man. The lighting conditions on the train were good. The man was wearing brown trousers, a blue shirt, a light green jacket and a hat with a small brim. He had a gold tooth and a gap between his teeth. Dickerson observed both men about two to two and a half minutes. Both men backed up to the door and got off the El at the Chicago Avenue stop. Dickerson later pointed out Clifford Allen as the man who had the gun. He testified that he had seen Allen about a week before the occurrence, on a subway train about 2:00 o'clock in the morning. On that occasion Dickerson was sitting on the subway when the defendant sat down beside him and asked Dickerson for a cigarette.
Robert McElroy, a C.T.A. police officer, testified that on August 27, 1962, he and his partner, Edgar Gillespie, arrested the defendant on a northbound subway train in the vicinity of the Harrison and State subway station about 2:00 a.m. The defendant had on a black shirt, grayish jacket, brown pants and a gray fedora hat. He had wide-spaced teeth that sort of protruded and a gold capped tooth. The defendant was then arrested and charged with attempted theft, and on September 12, 1962, was discharged as to ...